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Speak Up for Our Monuments

The Department of Interior is soliciting public comments on our national monuments as it considers potential steps to revoke or undermine protections for these natural treasures. All you have to do is visit the Regulations.gov website here and express your support for the monuments under review, ranging from Mojave Trails to Bears Ears. You can write a sentence, or you can attach a document with more detailed comments. Any comment helps!

Here is what I submitted:

Dear
Secretary Zinke:

I am an outdoor enthusiast and
father of a one-year-old daughter who I hope will have the same opportunities
that I and our ancestors have had to enjoy the natural beauty of America. I am
writing in support of our national monuments; each of the monuments currently
under review should be protected for future generations to enjoy.I believe that the public statements made by
President Trump in support of altering monuments at the signing of Executive
Order 13792 establishes a presumption that certain monuments should be reduced
in size or their protections undermined, without either the Department of
Interior or the President having the necessary authority to execute such a
recommendation. If such changes were to be made, the President and Interior would
violate the Federal Land Policy and Management Act of 1976 (FLPMA, 43 U.S.C.
Ch. 35) and the Constitution, and endanger the wildlife and cultural artifacts
found within the monuments. I oppose any efforts by the President and
Department of Interior to alter any of the current monuments’ protections.

President and Secretary of
Interior May Not Modify or Revoke Monuments

Any of Interior’s recommendations
regarding modification of the monuments stemming from its review would not be actionable
by the Executive branch. Neither the Antiquities Act of 1906 nor the FLPMA
authorize the President or Interior to reduce or eliminate national monuments,
or change the original prescriptions for managing the monuments set forth in
the establishing proclamations.

The Antiquities Act of 1906
delegates to the President the authority to create national monuments, but does
not explicitly convey any power to change previous monument designations.Congress solidified this interpretation of
the limits of the President’s authority over previous monument designations
when its passed the FLPMA.Section 204
(j) of the FLPMA denies the President and Secretary of Interior any power to
revoke or modify the monuments, including the terms of the original
proclamations establishing each monument.The FLPMA specifically reserves for Congress the power to revoke or
modify monuments established by Presidents.

Although Section 204 (j) does
not mention the President explicitly, the legislative history of FLPMA makes
clear that the intent of Congress was to also restrict the President’s
authority to challenge a predecessor’s proclamation under the Antiquities Act.[1]When the FLPMA was reported to the House for
consideration, Section 204 was described as follows:

“It would also specifically
reserve to the Congress the authority to modify and revoke withdrawals for
national monuments created under the Antiquities Act and for modification and
revocation of withdrawals adding lands to the National Wildlife Refuge System.”[2]

Monument Review Violates
Separation of Powers

The President’s Executive Order
seeks to undermine the separation of powers by setting the stage for the
President to decide on matters that fall squarely under the purview of Congress
and the courts.Even if one assumes that
the FLPMA leaves some ambiguity regarding the intent of Section 204 (j) to
limit the President’s ability to retroactively revoke or downsize previously
established monuments, the Congressional and judicial record provide no power to
the President to conduct the sweeping review of monuments outlined in the
Executive Order based on criteria already addressed by Congress and the courts.Rather than “to take care that the laws be
faithfully executed,” the President is attempting to re-write them and make
decisions in a field thoroughly occupied by the Congress and courts.[3]

Executive Order Attempts to Usurp Congress’ Constitutional Authority
Over Public Lands

The Constitution affords
Congress, not the President, the power of proprietor and legislature over
public lands.[4]Through passage of the Antiquities Act,
Congress delegated authority to the President to create monuments, and managing
those lands according to the establishing proclamation through the responsible
government agency (Bureau of Land Management, Forest Service, National Park
Service, or National Oceanic and Atmospheric Administration).Congress has not delegated any authority to
the President to revise previously established monuments, and the FLPMA
reserves that power to Congress.Yet,
the Executive Order presumes Congress has been silent on issues arising out of
previous Presidents’ use of the Antiquities Act.

The Executive Order takes issue with
aspects of national monuments established over the past two decades, implying
that some monuments “create barriers” to energy development, “restrict public
access,” and “curtail economic growth.”These are complaints levied by some against monuments that are nearly as
old as the Antiquities Act itself.And
over the lifetime of the Antiquities Act, Congress has exercised its role as
the nation’s “proprietor” of public lands and overseer of Presidential use of
the Act.Congress has passed legislation
to remedy some concerns with the President’s ability to establish monuments,
but has examined other complaints and decided not to act.

For example, Congress stepped in when it
determined that President Carter’s broad use of the Antiquities Act created
problems and passed the Alaska National Interest Lands Conservation Act ANILCA,
(P.L. 96-487, 1980).The law required
Congressional approval for monuments larger than 5,000 acres in Alaska.In 1950, Congress converted the controversial
Jackson Hole National Monument into a national park (Grand Teton), but then
limited future Presidents’ ability to establish monuments in Wyoming.

Perhaps most significantly, Congress
streamlined a number of public land laws and clarified authorities delegated to
the President and Secretary of Interior when it passed the FLPMA in 1976. The
FLPMA repealed several laws that previously granted Presidents authority to
withdraw public lands, and clarified under what circumstances the Secretary of Interior
could establish, modify or revoke withdrawals.The FLPMA, however, did not repeal the Antiquities Act, nor did it take
the opportunity to limit the scope of the President’s discretion to create
national monuments under the Act.Congress made this decision not to amend the Antiquities Act after
decades of Presidential use of the Act to establish millions of acres of
monuments.Furthermore, no President has
downsized or revoked a monument established by another President since passage
of the FLPMA.

Thus, Congress has spoken numerous times
on the establishment of national monuments since 1906, and each time with plain
view of the complaints enumerated in President Trump’s Executive Order.Congress has long acquiesced to the
President’s discretion to establish monuments – even those well over 100,000
acres[5]
-- and has stepped in when that discretion departed from Congress’
expectations. In effect, Congress has
retained its Constitutionally-derived authority over public lands, including
the monuments.There is no room for
President Trump to challenge Congress’ authority over previously-established
monuments.

Executive Order Attempts to Supplant Judicial Review

Neither the Constitution, Congress, nor
the courts have given the President the ability to judge the legality of
previously established monuments. The authority vested in the President to
create national monuments is derived from Congress delegating its legislative
authority, and the courts have tossed out challenges to the President’s ability
to establish national monuments.The Executive
Order directly challenges court rulings, revisiting grievances already heard
and tossed out by the courts against existing monuments.

The Executive Order implies that
previous Presidents violated the Antiquities Act by establishing monuments that
are too large or because they conflict with other commercial and industrial
uses, ignoring a history of judicial review of these concerns.The Executive Order also implies that the President is taking up
the case of would-be plaintiffs, and vaguely describing grievances against the
monuments.The Executive Order directs
Interior to review the “concerns of State, tribal, and local governments
affected by a designation, including the economic development and fiscal
condition of affected States, tribes, and localities.”

The Executive Order especially targets
Bears Ears National Monument in Utah and sets a shorter timeframe for
Interior's review of this monument, implying a sense of urgency to remedy
concerns.The Administration's own
public statements also suggest that the President seeks to adopt the powers of
the judiciary to judge and remedy perceived violations of the Antiquities Act.During the ceremony to sign the Executive
Order on April 26, 2017, President Trump stated:

"In December of last year alone,
the federal government asserted this power [the Antiquities Act] over 1.35
million acres of land in Utah known as Bears Ears … over the profound
objections of the citizens of Utah...The Antiquities Act does not give the
federal government unlimited power to lock up millions of acres of land and
water, and it is time we ended this abusive practice."

The Supreme Court has repeatedly upheld
the President’s wide discretion to establish national monuments,
including challenges to a President’s ability to protect large swaths of land
and the resources upon and beneath those lands.[6]
In fact, President Theodore Roosevelt used the Antiquities Act to protect over
808,000 acres of the Grand Canyon in 1908 – just two years after passage of the
Act – and the Supreme Court upheld Roosevelt’s monument designation in the face
of a legal challenge by someone that complained that the monument restricted
other uses, including commercial uses.

In 2003, the Supreme Court ended a legal
challenge by Mountain States Legal Foundation against a handful of national
monuments designated by President William Clinton, including some that President
Trump’s recent Executive Order has identified for review. In the case, Mountain States argued that “the [President
Clinton’s] Proclamations' nature, size, and scope facially contravene
Congress's limited purpose, which was to preserve rare and discrete man-made
objects, such as prehistoric ruins and ancient artifacts, Mountain States
further contends that the Presidential actions violate other statutes governing
the withdrawal of land from public use and the protection of environmental
values on federal land.”[7]
The United States Court of Appeals found that Mountain States presented no
facts to indicate that the President exceeded his authority to establish
monuments under the Antiquities Act, and that Mountain States’ claim that the
size of the monuments were too large “fails as a matter of law in light of
Supreme Court precedent interpreting the Act to authorize the President to
designate the Grand Canyon and similar sites as national monuments.”

In short, the courts have recognized the
broad discretion afforded to the President to justify establishment of new
national monuments.The Executive Order
seeks to revisit these court opinions and conduct an executive inquiry into
alleged violations of the law.In
challenging the judicial record, the President is also failing his duty to take
care that the laws are faithfully executed.

The public should not be asked
to defend the merits of each of the monuments under review by the Executive
Order because the President and Interior do not have standing to conduct such a
review in the first place, as explained above.Despite this, I submit the following comments to highlight the great
landscapes and objects protected by the national monuments targeted by
President Trump, and as evidence for why the President cannot be entrusted with
the power to undo protections for lands that we deem sacred.Congress has bestowed on the President the
power to save landscapes and objects from potential ruin, but it has not
bestowed on any single individual the terrible power to undo these protections
based on personal preferences or political winds.

Although I only provide
specific comments on a handful of monuments below, each of the monuments under
review indeed protects “historic landmarks, historic and prehistoric structures,
[or] other objects of historic or scientific interest,” consistent with the
requirements of the Antiquities Act of 1906.It should be no surprise that these landscapes are of scientific or
historical interest.Increasing demands
on public lands and the loss of wildlands across the globe have made the
remaining tracts of intact wildlands and historical artifacts even more
important.Demand for these places is
going up, and supply is going down.While their value remains priceless, our sense of urgency to protect
them is climbing.It is no question as
to why Presidents of both major political parties have felt compelled to use
the authority delegated to them by Congress to protect these landscapes.

Bears Ears National Monument is
probably too small to protect the natural and historical significance of this
region of Utah and should be expanded. The existing monument protects more than
100,000 cultural sites, including nearly 5,000 Native American pictographs and
petroglyphs.It also protects rich
paleontological resources in Bears Ears, including some being studied to better
understand the transition life on Earth from reptiles to mammals. Bears Ears
Monument maintains habitat for a very diverse range of wildlife species,
including15 species of bats, golden eagles, the threatened Mexican spotted owl,
the Utah night lizard, and badgers.The
monument continues to provide for multiple uses, including hiking, camping,
photography, stargazing, cultural education, and 4x4 touring.

Gold Butte National Monument in
southern Nevada contains a number of historical and natural wonders, including
the famous “Falling Man” rock art site, and rock shelters among the Aztec
Sandstone formation.The sandstone
formations themselves are geologically significant, including clusters of
formations carved by the elements over the centuries, such as the area in the
monument known as “Little Finland.”Once
considered, extinct, the relict leopard frog can be found in riparian habitat
in the monument.Las Vegas bearpoppy and
Las Vegas buckwheat are also found in the monument, and are among the amazing
desert plants able to thrive in the harsh gypsum soils of the area.The monument supports multiple uses.A network of designated routes allows for
motorized vehicle touring and access, and the amazing sites and wildlife
attract individuals seeking an escape from the city to enjoy camping, hiking,
photography, mountain bike riding, and learning about the Gold Butte region’s
amazing history.

Grand Staircase-Escalanate
National Monumentencompasses an amazing
landscape in southern Utah that should be protected for this and future
generations to enjoy.The region is a
contact point for the Anasazi and Fremont people and provides a wealth of
opportunities for archeological study.There are hundreds of recorded sites of Native American artifacts,
including rock art panels, granaries, and campsites.The monument also encompasses five life
zones, ranging from deserts at the lower elevations to the coniferous forests
at the monument’s upper reaches.The
monument protects ecosystems that are easily disturbed and slow to recover,
including relict grasslands of No Mans Mesa and pinyon-juniper communities that
may be as old as 1,400 years.The
monument supports multiple uses, including camping, climbing, horseback riding,
motorized-vehicle touring, photography, and river-running.

Mojave Trails National Monument
protects vast historical and natural wonders of the Mojave Desert.Pottery, petroglyphs and milling stations of
Native Americans can be found in the monument, as well as a long portion of the
Chemehuevi’s Salt Song Trail.Other
sites of sacred significance are protected within the monument’s boundaries
among the Piute and Old Woman Mountains.The monument also protects the longest remaining, undeveloped stretch of
Historic Route 66, the first paved road to connect both coasts of the United
States.General Patton trained troops on
desert lands here to fight the Nazis in North Africa during World War II.The monument now protects artifacts and
campsites left over from these training maneuvers. The monument also provides
an opportunity to study the habitat connectivity of desert wildlife, including
bighorn sheep and desert tortoise.The
rare white-margined beardtongue can be found here, and other wildflowers are
known to bloom in a riot of color in after sufficient rainfalls, including
among the volcanic rock of the Amboy and Pisgah areas.The monument also protects the largest and
densest population of Bigelow cholla cactus. The monument provides for multiple
uses, including 4x4 touring, 2WD touring, camping, hiking, stargazing
(including some of the best night sky resources in southern California), rock
hounding, and wildlife viewing.

Organ Mountains – Desert Peaks
National Monument protects an amazing Chihuahua Desert landscape
in southern New Mexico, encompassing habitat for a range of wildlife species,
and a wealth of sites of paleontological, geological, cultural and historical
significance.Rock art sites dot the
landscape, and fossils of ground sloths can be found in the monument.The monument also protects sites of historic
battles between Native Americans and Spanish, Mexicans and Americans, and
between Union and Confederate troops.The endemic Organ Mountain evening primrose, and also soap tree yucca
and alligator juniper are protected by the monument’s designation.The monument supports multiple uses,
including hiking, camping, photography, stargazing, cultural education, and 4x4
touring.

Papahanaumokuakea Marine
National Monument protects an area of the Pacific Ocean that is
home to marine wildlife species that roam a vast portion of the monument,
including Laysan and Black-footed albatross and 24 species of whales and
dolphins.The monument also protects an
area of spiritual significant in Hawaiian culture.The monument “contains the boundary between
Ao, the world of light and the living, and Pō, the world of the gods and
spirits from which all life is born and to which ancestors return after
death.”The monument is also the final
resting place for nearly 3,000 people that perished during the naval portion of
the Battle of Midway, which occurred 200 miles from the Midway Atoll.The monument supports multiple uses,
including non-commercial fishing, voyaging and wayfinding, wildlife viewing,
sailing, stargazing, diving, and shipwreck exploration.

San Gabriel Mountains National
Monument protects a rugged mountain landscape at the
doorstep of southern California’s urban areas, contains habitat for iconic
wildlife and preserves a rich history of human inhabitation spanning from
Native American peoples to Mexican rancheros and Euro-American
prospectors.The monument is also a
haven for scientific discovery, including the site of advancements in astronomy
and hydrology. The monument protects habitat for the threatened California
red-legged frog, endangered mountain yellow-legged frog, and the California
condor.Joshua trees grace north-facing
slopes at one edge of the monument, and a mix of conifers can be found at the
higher elevations.The monument supports
a number of uses, including camping, hiking, mountain climbing, swimming,
photography, touring, fishing, cycling, and wildlife viewing.

Vermillion Cliffs National
Monument in Arizona protects nesting grounds for the
endangered California condor, Native American artifacts, and amazing geological
formations, including “the Wave,” a world famous site.The red rock cliffs overlook the Colorado
River and were traversed by early Mormon and Spanish explorers.“The Maze” is a rock art site in the monument
with labyrinth designs created by the Anasazi people. Welsh’s milkweed is a
beautiful and rare plant protected by the monument that grows on sand
dunes.The monument also falls within
some of the best dark sky resources in the United States, protecting land from
which we can view the night sky without obstruction of light pollution.The monument supports multiple uses,
including stargazing, camping, 4x4 touring, hiking, photography, wildlife
viewing, and more.

These and other monuments
protect amazing American landscapes, our cultural heritage, historical and
geological wonders, and a rich diversity of wildlife.They should be left intact and managed to
protect these qualities for all generations to enjoy and explore.

[1]Squillace, Mark Stephen and Biber, Eric and Bryner,
Nicholas S. and Hecht, Sean B., Presidents Lack the Authority to Abolish or
Diminish National Monuments (May 13, 2017). 103 Va. L. Rev. Online (2017); UCLA
School of Law, Public Law Research Paper No. 17-16; UC Berkeley Public Law
Research Paper. Available at SSRN: https://ssrn.com/abstract=2967807. The paper
shows that the plain language of Section 204 (j) identifies the Secretary of
the Interior and not the President because of an error in how the legislation
was revised.Earlier versions of the
FLPMA sought to consolidate all withdrawal authority under the Secretary of
Interior, including the President’s authority under the Antiquities Act.The provision that would have transferred
that authority from the President to Interior was later dropped by a
Subcommittee, but Section 204 (j) was not modified.However, the Report to the House that accompanied
the bill clearly expresses the intent of Section 204 (j).

[3]See Youngstown Sheet & Tube Co. v Sawyer, 343
U.S. at 610. “The duty of the President is to see that the laws be executed is
a duty that does not go beyond the laws or require him to achieve more than
Congress sees fit to leave within his power.” (quoting Myers v United States,
272 U.S. 52, 177 (1926)

[4]Article 4, Section 3, Clause 2 of the US Constitution;
also see Camfield v. United States, 1897.

[5]President Theodore Roosevelt established Grand Canyon
National Monument in 1908, encompassing over 808,000 acres and prompting
concerns by private and commercial interests. Katmai National Monument was established by
President Wilson in 1918 and encompassed1,088,000
acres.Thus, the 100,000 acres threshold
arbitrarily identified in Executive Order 13792 challenges monument sizes that
date back essentially to the creation of the Antiquities Act itself.

[6] Cappaert
v. United States, 426 U.S. 128 (1976), the Supreme Court upheld the President’s
ability to proclaim a national monument and reserve water rights necessary to
sustain the Devil’s Hole pupfish population in Nevada.Separately, Cameron v. United States

252 U.S. 450 (1920)
also reinforced the President’s discretion to withdraw public lands from
certain uses to protect objects of scientific interest.In this case, that object was the Grand
Canyon.

[7]Mountain States Legal Foundation v. Bush, in his
official capacity as President of the United States of America 2002., <http://caselaw.findlaw.com/us-dc-circuit/1160787.html>

Cadiz Dunes in Mojave Trails National Monument at sunset.

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